An attorney’s lack of care and diligence can have adverse costs consequences
Updated: Sep 8, 2020
Author: Ayanda Nondwana – Director & Zinhle Mokoena, Candidate Attorney
“There comes a time when a diligent attorney has to leave the comfort zone of his or her air-conditioned office and venture out to do some fieldwork in order to safeguard the interests of a client [Mlenzana v Goodrick & Franklin Inc 2012 (2) SA 433 (FB)].”
It is trite that an expert witness is required to assist the court and not to usurp the function of the court. Expert witnesses are required to lay a factual basis for their conclusions and their opinion must be underpinned by proper reasoning for a court to assess the cogency of that opinion. The court must be able to satisfy itself as to the correctness of the expert’s reasoning. Absent any reasoning, the opinion is inadmissible. An expert opinion which lacks proper reasoning is not helpful to the court.
In Ndlovu v Road Accident Fund 2014 (1) SA 415 (GSJ), the court held that in order for a comprehensive medico-legal report to continue being accepted as complying with the rules pertaining to expert evidence in modern practice, and for the plaintiff not to be potentially prejudiced by a failure to distinguish assumptions from fact and opinion, the following is pertinent:
A clear distinction must be made between the primary source data relied upon, secondary sources and the plaintiff’s say-so. The primary source would inevitably be the treating hospital’s records from the time of the accident until discharge.
The medico-legal report should also clearly indicate whether the plaintiff’s assertions are accepted or merely assumed.
Accordingly, the court ruled that much will depend on how the experts distinguish between objective originating data on the one hand and the plaintiff’s say-so or unsubstantiated hearsay on the other. In this way a clear line can be drawn between expert opinion evidence on the one hand and the acceptance of the plaintiff’s mere say-so on the other.
In a matter wherein the writers were involved, and judgement handed down in November 2019, the apt advice given by the court in Mlenzana was not heeded, with dire consequences to the attorney who was representing the plaintiff.
Briefly, the facts were: the defendant, an incorporated firm of attorneys, had acted on behalf of the plaintiff in a claim against the Road Accident Fund for damages arising out of a motor vehicle accident. The claim became prescribed in the hands of the defendant and, as a result, the plaintiff instituted a claim for professional negligence.
The parties reached a settlement save for the costs of three experts engaged by the plaintiff. The defendant contended that it was not necessary or reasonable for the plaintiff to have engaged their services and as a result, their reports were not opinions as prescribed by the law and therefore the defendant was not liable for these costs. On the other hand, the plaintiff’s attorney contended that it was necessary for him to investigate the head injury based on the version of the plaintiff that he lost consciousness at the scene of the accident. In short, the plaintiff’s attorney accepted the say-so of the plaintiff without demur in deciding to brief the said experts. Similarly, the said experts concluded that there was a head injury on the say-so of the plaintiff and in absence of objective evidence or data to support their conclusion.
In granting judgement in favour of the defendant, the court reminiscent of Mlenzana profoundly remarked as follows:
“However, faced with the plaintiff who alleges to have been knocked unconscious at the time of the accident and hospital record which do not show anything or a complaint relating to a head injury, not even showing the recording of the Glasgow Coma Scale on admission or any MRI scan results, I am unable to comprehend why the clinical notes of the first treating doctor were not obtained.
“Further, it is incomprehensible why a statement was not obtained from the plaintiff's employer as to the state in which he found the plaintiff when he took him to the private doctor on that day. I am of the respectful view that a diligent attorney would have obtained this information to ascertain whether the plaintiff was in fact knocked unconscious on the day of the accident before embarking on a costly exercise to engage the services of experts. The ineluctable conclusion is therefore that the referral of the plaintiff to the experts as part of the investigation of the head injury was unreasonable and unnecessary in the circumstances of this case.”
As a result of the court disallowing these costs, the plaintiff’s attorney absorbed the costs as his expense. The above judgement is a welcome reminder to all attorneys who specialize in personal injury matters that care and diligence are required prior to the engagement of medical experts. The reliance on the say-so of the client does not meet the basic standard of reasonableness. The attorney is required to do some leg work for a change, otherwise the consequences will be costly.
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